In a major development with far reaching consequences, the Apex Court has in a recent, robust, rational and refreshing judgment titled Rakesh Rai @ Vishal Rai @ Purna Rai & Anr vs State of Sikkim in Criminal Appeal No. 172 of 2018 that was delivered finally on December 9, 2021, has opined that recovery under Section 27 of the Evidence Act would not be admissible if the disclosure statement was made in connection to a crime undergoing separate trial, especially when such statement was not made to the jurisdictional police officer. All the courts must adhere to what the three Judge Bench of the Apex Court has held in this leading case! It is worth paying attention that the Bench comprising of Justice UU Lalit, Justice S Ravindra Bhat and Justice Bela M Trivedi upheld the order of the Trial Court acquitting the appellants who were convicted and sentenced to life imprisonment by the High Court, for committing murder.
To start with, the ball is set rolling first and foremost in para 1 wherein it is put forth that, “This appeal has been preferred by Rakesh Rai alias Vishal Rai alias Purna Rai (original accused No.3) and Tenzing Tamang (original accused No.4), collectively referred to as the appellants, challenging the judgment and order dated 20.04.2012 passed by the High Court of Sikkim at Gangtok in Criminal Appeal No.8 of 2011.”
While mentioning about the charges for which the accused were being tried, the Bench then mentions in para 2 that, “Four persons, namely, Praveen Subba (original accused No.1), Abishek Rai (original accused No.2), and the appellants were tried in the Court of Sessions, South & West Sikkim at Namchi in Sessions Trial Case No.21 of 2004 for having committed the offences punishable under Section 302 read with 34 of the Indian Penal Code, 1860.”
As we see, the Bench then observes in para 3 that, “The aforesaid trial was taken up pursuant to the crime registered after lodging of the First Information Report No.25(11)03 dated 28.11.2003 registered with Police Station Kaluk, District Gayzing.”
In hindsight, the Bench then recalls in para 4 that, “Said reporting was as under:
“Today (i.e. 28.11.03) at around 030 hrs. a telephonic information has been received from I/C Dentam O.P. stating that one male unidentified dead body has found below road near liching basty, W/Sikkim.
On the basis of above information registered Kaluk P.S. U/D. Case No.11(11)03 dated 25.11.03, U/S 174 Cr.P.C. and took investigation.
During investigation inspected place of occurrence the P.O. has found located Dentam to Pelling road at liching busty which is about one Km. far from the B.B. lall suspension bridge of Dentam. In road tooth and blood are found. About 100 foots below the road one unidentified dead body of male person was found lying dead. Later the dead body was identified as Sonam Dadul Bhutia S/o Kinzang Dadul Bhutia of Chumbang, Gayzing, W/Sikkim. Inquest over the dead body was conducted. During inquest injuries are found on his head and tooth of upper Jaw are found missing. One black chunni is also found nearby the P.O.
So far investigation transpired that the deceased Sonam Dadul Bhutia was suspected to murder by same unknown person(s) and thrown below road at liching busty on 27.1.03 at around 1900 hrs.
As such the above U/D case has been converted into criminal case vide F.I.R. No. 25(11)03, dated 28.11.2003, U/S. 302 IPC against unknown person on suomotu for further investigation.””
Needless to say, the Bench then states in para 5 that, “After due investigation, the aforesaid four accused persons were sent up for trial.”
It is worth stating here that the Bench then observes in para 8 that, “It may further be stated here that insofar as the crime concerning the alleged murder of Beena is concerned, separate criminal proceedings being Sessions Trial No.26(S)/04 pursuant to FIR No.331(11)2003 dated 24.12.2003 lodged with Police Station Matigarh, Siliguri, District Darjeeling, in respect of offences under Sections 302/201/34 IPC are going on. In that crime all the four accused stand named in the FIR and the prosecution is still going on.”
For sake of clarity, the Bench then specifies in para 9 that, “We are however concerned here with the murder of Sonam Dadul Bhutia and not Beena.”
It is worth noting that the Bench then envisages in para 10 that, “The material against the appellants, for that matter principally against accused No.3 can be categorized as under:
a) Some of the witnesses had seen Maruti Car No.WNC-0525 at Dentam Bridge.
b) The Car No.WNC-0525, according to the prosecution, was owned by PW40 but was in the custody and under control of accused No.3 Rakesh Rai.
c) A girl was seen in the company of accused no.3 Rakesh Rai though the prosecution chose not to establish the identity of that girl.
d) It was at the pointing out of accused no.3 Rakesh Rai that the body of Beena could be recovered.”
It is also worth paying attention that the Bench then clearly states in para 11 that, “Considering the entirety of the material on record, the Trial Court by its judgment and order dated 20.05.2011 acquitted all the four accused of the charges levelled against them. The Trial Court did not find the evidence on record adequate to return a finding of guilt against all the four accused.”
As it turned out, the Bench then points out in para 12 that, “The State did not choose to file any appeal against acquittal of accused Nos.1 and 2 but filed Criminal Appeal No.8 of 2011 challenging the acquittal of the appellants.”
To put things in perspective, the Bench then enunciates in para 13 that, “By its judgment and order presently under challenge, the High Court accepted the appeal preferred by the State and while reversing the acquittal it recorded conviction against the appellants for the offences with which they were charged. The High Court then sentenced them to imprisonment for life and to pay fine in the sum of Rs.20,000/- each, in default whereof they were directed to suffer further imprisonment of six months.”
Quite significantly, the Bench then hastens to add in para 15 that, “What emerges from the record is that:
i. Sonam Dadul Bhutia and Beena, according to the prosecution, were found in the company of accused Nos.1 and 2.
ii. Both accused Nos.1 and 2 were acquitted of the charges levelled against them.
iii. Not a single witness stated that Sonam was seen in the company of the appellants.
iv. Even if it is accepted, at its best, the material on record would thus go to show that a girl was in the company of accused No.3. The identity of that girl was however not established.
v. It was at the pointing out of A3 Rakesh Rai that the body of Beena was recovered.
vi. For the murder of Beena, a separate trial is going on and in these proceedings we are concerned with the murder of Sonam Dadul Bhutia.”
Be it noted, the Bench then points out succinctly in para 17 that, “As stated herein above, not a single person had seen Sonam in the company of the appellants nor was the body of Sonam recovered pursuant to any disclosure made by any of the appellants.”
Most significantly, the Bench then minces no words in para 18 to hold clearly, categorically, composedly and convincingly that, “In the circumstances, in our considered view, the acquittal recorded by the Trial Court was right and justified. There was no reason for the High Court to upturn the view taken by the Trial Court while dealing with an appeal against acquittal.”
Equally significant is what is then held so aptly in para 19 that, “Consequently, we allow this appeal, set-aside the judgment and order of the High Court and acquit the appellants i.e. Rakesh Rai alias Vishal Rai alias Purna Rai (original accused No.3) and Tenzing Tamang (original accused No.4) of the charges levelled against them. They be set at liberty forthwith unless their custody is required in connection with any other crime.”
Finally, the Bench then concludes by holding very rightly in para 20 that, “Needless to say that the proceedings which are presently going on in the Court at Siliguri, District Darjeeling concerning the murder of Beena shall be taken to the logical conclusion without in any way being influenced by the order of acquittal recorded against the appellants in the present matter. The proceedings before that Court shall be considered purely on merits and in accordance with law.”
No doubt, the long and short of this learned judgment by a three Judge Bench of the Apex Court is that recovery that is made under Section 27 of the Evidence Act would not be admissible if the disclosure statement was made in connection to a crime undergoing separate trial, especially when such statement was not made to the jurisdictional police officer. It is a no-brainer that we thus see that the accused are acquitted as the recovery based on disclosure statement made in another crime would not be admissible as evidence. There can be no gainsaying that all the courts must always definitely abide by what the Apex Court has stated so explicitly in this leading case also in similar such cases!